In Depth

A federal government office has cleared two Dearborn County officials who’d been accused by the former county attorney
of violating federal law that restricts political activity for those involved with federally funded programs.

Ending a nearly three-month public ordeal, the U.S. Office of Special Counsel issued a letter Monday to the Dearborn County
Sheriff’s detective who’d been one of two accused of violations. G. Michael Witte, the former county attorney
who notified federal authorities of the possible violations, left that position in June to become the Indiana Disciplinary
Commission’s executive secretary.

Acting as county attorney, Witte – a former Dearborn Superior 1 judge – wrote a letter to the office’s Hatch Act Unit in May that asked the office to investigate possible county
violations of the federal law. The 1939-enacted law is designed to prevent conflicts of interest in government, and it restricts
political activity of some federal, state, and local employees who work in connection with federally funded programs.

The issue has surfaced recently throughout the state, most notably in the case of the Terre Haute mayoral election in which
the Indiana Supreme Court last year upheld a Vigo Circuit judge’s decision that the state statute relating to the Hatch
Act and Little Hatch Act didn’t prevent the mayoral election winner from initially being a candidate or subsequently
taking office after he’d defeated the incumbent mayor.

After an internal review in Dearborn County, Witte wrote that he believed the county is out of compliance with the Hatch
Act provisions on four grants totaling $327,112. At issue were two county employees: county commissioner candidate Shane McHenry,
who is one of three sheriff’s detectives working in the county Special Crimes Unit that receives three grants; and county
councilman Bryan Messmore, who works in the victims’ services area of the prosecutor’s office that receives a
federal grant that pays for his salary and benefits.

Witte considered those dual roles as possible Hatch Act violations that could result in the county losing federal grants
or being fined, so he wanted the federal office to review the matter because it’s outside the county authority. He raised
the issue during a county commissioners meeting May 17, and both McHenry and Messmore maintained they hadn’t violated
the Hatch Act.

In its letter to McHenry, Hatch Act Unit Deputy Chief Erica S. Hamrick wrote that the sheriff’s detective and commissioner-candidate
didn’t fall under the law’s scope because he didn’t have any job duties specifically relating to any federally
funded program. The position with the sheriff’s office is funded solely through state tax dollars and not any federal
grants or loans, the office wrote, and his role with the special crimes unit didn’t involve supervising anyone with
those duties.

“The argument could be made that because the coordinator, administrative assistant, and part-time deputy prosecutor
play an important role in the operations of the SCU, a detective assigned to the SCU would have duties in connection with
federally financed activities,” the letter states. “However, we find that your employment ‘can more accurately
be said to be in association with such activities.’"

The office cited In re Pearson, 2 P.A.R. 70,71 (1970), in which the Civil Service Commission held that the respondent
wasn’t covered by the Hatch Act because his duties in relation to construction of federal highways were in association
with, not in connection with, the federally financed activities.

A footnote on the letter’s last page instructs that McHenry should contact the office if his job duties or the federal
funding changes, for possible further review.

McHenry told Indiana Lawyer today that he’d received a phone call about “being cleared” a month
ago, but just received the letter this week. He also said that the office had previously cleared Messmore after determining
the Hatch Act didn’t apply because Messmore had been named by political caucus and not a bipartisan election as the
law requires. The federal office couldn’t be immediately reached today and has previously declined to discuss specifics
about this or any case.

Witte reviewed the Hatch Act letter and limited his comments, as he no longer represents the county.

“I did what I was required to do, and that was to investigate possible violations and report them to someone with authority
to decide what should happen,” he said today. “I did my job, and they did their job. There was nothing nefarious
about any of this.”